Bharatiya Nyaya Sanhita: Problematic Drafting of New Provisions

The government has introduced The Bharatiya Nyaya Sanhita Bill, 2023 to replace the Indian Penal Code, 1860.

It appears that the Bill is broadly based on the same principles as the existing Code (which is good as also natural). However, some of the new additions in the Bill require a closer examination— both in terms of phraseology as well as intent.

It appears that some provisions have been poorly worded, while others have been confusingly included without any assessment of the need for such inclusion.

The present article is an attempt to highlight some of these errors that require some attention as the Bill is discussed further.

Community service

At the outset, one of the things to appreciate about the Bill is the inclusion of community service as one of the punishments.

Granted, it is a suitable punishment for petty cases where imposition of mere fine may not meet the ends of justice, and where incarceration may be too severe.

However, what the Bill misses is prescribing exactly what constitutes community service. In absence of any such prescription, the possibility of controversies arising over sentencing cannot be overlooked.

Courts in India have been imposing community service as conditions for bail for a while now.

For example, ordering traffic management and working at de-addiction centres.

However, there have also been stray cases where peculiar kinds of community service were ordered. For example, direction to distribute copies of Quran, donation of money to gaushala or direction to serve at a temple.

Though some of these directions were withdrawn subsequently, the possibility that such directions— or other similar directions having religious connotations or furthering patriarchal (or otherwise problematic) norms— cannot be ignored.

It may thus be beneficial to list out the activities that could constitute community service, or to prescribe norms that ought to be kept in mind.

The criteria can include prohibition of services that have direct religious underpinnings or affect advancement of societal interests.

Organised crime

Clause 109 of the Bill penalises a variety of crimes under the heading: “organised crime”; ranging from holding property on behalf of an organised crime syndicate to committing organised crime.

The offences prescribed under this general heading are very similar to several existing laws, such as the Maharashtra Control of Organised Crime Act, 1999 (MCOCA), which is also applicable in Delhi.

However, a closer scrutiny reveals that though they are similar provisions, the definition in the sanhita is much wider and ambiguous.

The first sub-clause attempts to define organised crime.

It states: “(1) Any continuing unlawful activity including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offences, cyber-crimes having severe consequences, trafficking in people, drugs, illicit goods or services and weapons, human trafficking racket for prostitution or ransom by the effort of groups of individuals.”

It continues that these groups of individuals could be “acting in concert, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence, threat of violence, intimidation, coercion, corruption or related activities or other unlawful means to obtain direct or indirect, material benefit including a financial benefit, shall constitute organised crime.”

This sub-clause provides an inclusive definition, but interestingly, the activities it seeks to include are not defined as offences in the sanhita.

Phrases such as “land grabbing” thus remain vague and unclear.

Further confusion arises when one considers that “cyber crimes” (which is also undefined) is further qualified with the phrase “having severe consequences”.

There is no provision to clarify as to which cyber crimes will be considered to have severe consequences.

The phrase “economic offences” also remains undefined, though an inclusive explanation is provided.

Here also, vague phrases such as “financial scams”, “Ponzi schemes” and “mass-marketing fraud” have been used, without defining what these terms mean.

The vague and loose manner in which the terms have been used leave room for massive abuse of the provision.

Petty organised crime

Clause 110 of the Bill is supposed to penalise “petty organised crime”. The definition starts with the phrase “any crime that causes general feelings of insecurity among citizens relating to…”

Two things need to be pointed out at this stage: firstly, the sanhita does not        define ‘crime’ anywhere. 

Everywhere else in the sanhita, the word used is ‘offence’. What purpose the government seeks to achieve by not using the standard word is unknown.

Secondly, prescribing higher punishment for an offence merely because it causes “general feelings of insecurity” among citizens is problematic.

What this essentially means is if one person is to commit an offence but citizens do not feel ‘insecure generally’, then he would suffer lesser punishment under the regular penal Section.

However, if another person were to commit the very same offence, but the citizens ‘generally feel insecure by it’, that person would suffer the graver punishment.

The difference in punishment, then, is not because of any difference in the act, but simply because of a difference in perception of the act by the citizenry.

Thus, if the citizenry is to perceive acts by one community to cause insecurity to them, all members of this community would automatically face higher punishments for the same offence.

The fundamental reason to prescribe higher punishment for an act is to cause higher deterrence. However, even the deterrent purpose may not be served here.

Logically, deterrence is to be caused because a person knows the punishment that would follow.

However, when the punishment to be suffered depends solely upon whether or not the act would “cause general feelings of insecurity”, the offender would not even know whether the offence they are committing would constitute an offence simpliciter or a petty organised crime.

The road ahead

It appears that the Bill has taken the existing code and rearranged the provisions. While this removes the obsolete junk, it does little to make any practical difference.

The new provisions which have been introduced, on the other hand, appear to either be improperly drafted or are reiterations of existing provisions from different statutes.

There are several other provisions where terms have been used very loosely or improperly.

The article is neither a comprehensive assessment of the Bill, nor a complete analysis of the provisions and concerns mentioned above.

It is worth highlighting, however, that carelessly drafted provisions such as these can have devastating consequences, and the three Bills being introduced by the government require a very careful scrutiny and discussion.

Two important aspects would have to be dealt with: the need to introduce new provisions (are these acts not already covered elsewhere?) and the need to phrase them in a proper manner without any ambiguity.

Both these aspects are missing from the statements of objects and reasons of the Bill.

Nipun Arora is an advocate practicing in Delhi High Court and criminal trial courts. He is deeply interested in issues of constitutional & criminal law. He can be reached at [email protected]. Abhimanyu Kampani is a partner at Luthra & Luthra, Delhi.

The views expressed are personal.